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Tirumala Bearings (P) Ltd. Versus CCE&C (Appeals) , Visakhapatnam

2015 (12) TMI 655 - CESTAT BANGALORE

Refund of excess duty paid - whether the refund claim filed by the assessee in terms of the Tribunal s order would be hit by the principles of unjust enrichment or not - Held that:- Admittedly the appellants have given a Chartered Accountant certificate indicating that duty element has not been received by them from their buyers. As per the majority order of the Tribunal in the case of Business Overseas Corporation Vs. CCE(Import & General), New Delhi [2014 (11) TMI 528 - CESTAT NEW DELHI (LB)], .....

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cate certifying extra duty paid not recovered from buyers to be given due evidentiary value especially when the said extra duty reflected in balance sheet as loan and advances recoverable from the Revenue. The appellants have taken a categorical stand in the present proceedings that the adjudicating authority examined the balance sheet of the year 2000-2001 whereas the importation was made in the month of March 2001 and it was reflected in the next financial year, which stands taken into account .....

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en as a consequence of prolonged litigation by the appellant and the ultimate order of the Tribunal in their favour, on the ground of unjust enrichment is not justified. We accordingly set aside the impugned order - Decided in favour of assessee. - C/251/2007-DB - FINAL ORDER NO.22066/2015 - Dated:- 14-10-2015 - Smt. Archana Wadhwa, Judicial Member And Shri Ashok Kumar Arya, Technical Member For the Petitioner : Shri Kushagra Shah, Advocate For the Respondent : Shri R. Gurunathan, Addl.. Commiss .....

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ed a refund claim of ₹ 12,78,786/- with the original adjudicating authority. The same stands rejected on the ground of unjust enrichment. The order of the Assistant Commissioner rejecting the refund was upheld by Commissioner(Appeals). Hence the present appeal. 3. The sole question required to be decided in the present appeal is as to whether the refund claim filed by the assessee in terms of the Tribunals order would be hit by the principles of unjust enrichment or not. The appellant dur .....

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transferred to purchase but the balance sheet did not clearly indicate as to how the excess duty was transferred to advance account. He further observed that though the appellants had showed the sales invoices raised by them in favour of the buyers and some of the goods were sold to other traders in Kolkata but the invoices are not giving the address of the buyers and as such it cannot be concluded that the excess duty incidence has not been passed on to the consumers. He accordingly held that t .....

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doubted by the authorities below and the Chartered Accountant being a responsible person, controlled by Institute of Chartered Accountant of India, which is a statutory body, could not have given a wrong certificate. There is no reason as to why the authorities below should reject the same without any reason. They have further contended that they have produced all the sale invoices with quantity and value along with memos / local bills. Merely because the buyers addresses were not given, it will .....

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he burden to the Revenue to prove recovery of extra duty collected from the customers by producing positive evidence. As the Revenue failed to advance any evidence to rebut the Chartered Accountant certificate, the allegation of unjust enrichment cannot be upheld. Similarly in the case of Deepak Internationa Vs. CC&ST, Kanpur [2014(304) ELT 438 (Tri. Del.)], it was observed that Chartered Accountant certificate certifying extra duty paid not recovered from buyers to be given due evidentiary .....

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